Kerala High Court
Jamaludheen vs State Of Kerala on 14 July, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 14TH DAY OF JULY 2017/23RD ASHADHA, 1939
Crl.Rev.Pet.No. 827 of 2017 ()
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CRL.A.365/2011 OF SPECIAL COURT (SC/ST (POA) ACT CASES), MANJERI.
ST 673/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,
PERINTHALMANNA.
......
REVISION PETITIONERS/ACCUSED:
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JAMALUDHEEN,
AGED 40 YEARS, S/O.ABDURAHIMAN,
PUTHENPEEDIYEKKAL HOUSE,
CHENNARA AMSOM DESOM, TIRUR TALUK,
MALAPPURAM DISTRICT.
BY ADVS.SRI.ANOOP.V.NAIR
SRI.R.SREEHARI
SRI.M.V.SURESH (KANNUR)
SRI.V.K.SREEJITH
SMT.M.SRUTHI DAS
RESPONDENTS/COMPLAINANT:
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
2. THARAYIL HAMZA,
AGED 51 YEARS, S/O.MOIDEEN,
CHENNARA AMSOM DESOM, TIRUR TALUK,
MALAPPURAM DISTRICT.
R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY
R2 BY ADV. SRI.P.VENUGOPAL (1086/92)
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 14-07-2017, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
mbr/
ALEXANDER THOMAS, J.
================== Crl.R.P.No. 827 of 2017 ================== Dated this theO14th day of July, 2017 R D E R The petitioner is the accused in Summary Trial Case, S.T.No. 673/2009 on the file of the Judicial First Class Magistrate's Court-II, Perinthalamanna, for the offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 2nd respondent (complainant). The trial court as per the impugned judgment dated 25.10.2011 had convicted the petitioner and had sentenced him to undergo simple imprisonment for 6 months and to pay Rs.5 lakhs as compensation to the complainant under Sec. 357(3) of the Cr.P.C.. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.365/2011 before the appellate Sessions Court concerned (Special Court for SC/ST [POA] Act Cases, Manjeri). The appellate court, as per the impugned appellate judgment dated 1.2.2017, had upheld the conviction, but modified the substantive sentence of imprisonment from 6 months' simple imprisonment to imprisonment till rising of the court and ordered to pay Rs. 5 lakhs as fine, with a default sentence clause of two months' simple imprisonment. It is aggrieved by the abovesaid findings of both the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under Sec.397 read with Sec.401 of the Cr.P.C.
2. Heard Sri.Anoop.V.Nair, learned counsel appearing for the Crl.R.P.827/17 - : 2 :-
revision petitioner (accused), Sri.P.Venugopal, learned counsel appearing for the R-2 (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State.
3. The gist of the prosecution case is that in discharge of a debt of Rs.5 lakhs owed by the accused to the complainant, the revision petitioner (accused) had issued Ext.P-1 cheque dated 11.6.2008, for Rs. 5 lakhs drawn from his account and payable in favour of the complainant, which when presented, was dishonoured by the bank as per Ext.P-3 memo dated 18.6.2008. That thereupon the complainant had issued Ext.P-4 statutory demand notice dated 23.6.2008 calling upon the accused to pay off the amount covered by the cheque within 15 days from the date of receipt of the notice and that the said notice sent by registered post was duly received by the accused as per Exts.P-5 and P-6. The accused had sent Ext.P-7 reply notice dated 1.7.2008 denying the liability and also raising objections to the source of the complainant to raise such a huge amount as he is only a headload worker, etc. That thereupon, after complying with the requisite statutory formalities, the complainant had initiated the instant complaint, which led to the trial.
4. During the trial the complainant has examined P.W-1 ( complainant) and P.W-2 (Bank Manager) and had marked Ext.P-1 to P-10 documents. The defence had adduced evidence through DW-1 and DW-2.
5. Both parties have been heard. Sri.Anoop V.Nair, learned Crl.R.P.827/17 - : 3 :-
counsel appearing for the revision petitioner (accused) would raise various contentions on the merits of the matter. One such contention is that statutory demand notice, complaint and the proof affidavit are conspicuously silent about the details of the transactions, which led to the liability and about the materials particulars regarding the alleged execution and issuance of the cheque in question, etc. It is pointed out that the complaint is totally silent about the day on which the alleged borrowal has taken place, the day on which the cheque has been handed over by the accused, etc. That these aspects were for the first time disclosed by the complainant (P.W-1) only during the time of cross examination and that even the specific days of these transactions are not disclosed in the cross examination, except stating about the month and the year concerned. Accordingly, it is argued by the petitioner's counsel that such omission to mention the crucial and relevant aspects, relating to the transaction and the alleged issuance of the cheque would amount to suppression of material particulars in the complaint and would vitiate the trial in the light of the decision of this Court in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233. Reliance is placed by the petitioner's counsel on paras 18 and 20 of the said decision, which read as follows:
"18. Before she filed the complaint the second respondent sent Ext.P4 statutory notice to the revision petitioner informing him about the dishonour of the cheque and demanding payment of the amount covered by it. Neither the nature, nor the date of the transaction between the parties nor the date of issuance of the cheque was disclosed in it. There was only a bald statement that the revision petitioner issued a cheque Crl.R.P.827/17 - : 4 :-
bearing the date 11.1.1999 for Rs.2,55,000/- in discharge of a debt. There is no explanation why these material facts were not disclosed in the statutory notice. Suppression of material facts relating to the alleged transaction in the notice issued before filing the suit or the complaint is an artifice used by certain litigants, the intention of which is very clear. They want to develop a story after knowing the defence that may be set up by the opposite party. The doors of the court should be closed to such fortune seekers.
xxx xxx xxx trial not20.In a criminal case the accused should be informed before the only of the nature of the offence but also the particulars of the transaction which are necessary for him to effectively meet the case against him. But unscrupulous complainants refuse to do so with the object of denying the accused a fair trial, which is a right guaranteed under Article 21 of the Constitution. An accused in a complaint case filed under Section 142 of the Act also is entitled to know before the trial the particulars of the accusation against him. Suppression of these particulars in the complaint alone is sufficient to order his acquittal."
6. It is pointed out that both the courts below have erred egregiously in holding that the omission to state such material particulars is not relevant in complaints involving offence under Sec.138 of the Negotiable Instruments Act and that the said approach of both the courts below is in patent disregard of the legal principles laid down by this Court in various decisions as in K.K.Divakaran's case supra. It is pointed out that the accused in a criminal trial is essentially called upon to defend himself only of the gravamen of the charges and allegations raised in the complaint and that failure to state about the crucial and material particulars relating to the transactions and the alleged issuance of the cheque, etc. would deprive the accused of his right to properly defend himself in criminal trial, which would be blatant violation of the right to free trial guaranteed under Art.21 of the Constitution of India, etc. Crl.R.P.827/17 - : 5 :-
7. Yet another contention raised by the petitioner's counsel is that the petitioner has seriously challenged the very financial competence of the complainant to raise such a huge amount of Rs. 5 lakhs, which he has allegedly given in January, 2008. It is pointed out that it is the admitted case of the complainant that he is only a headload worker. It is also argued that the petitioner has even at the time of issuance of Ext.P-7 reply notice has raised this crucial objection and serious challenge was also mounted during the cross examination of P.W-1. In this regard the petitioner would place reliance on the judgment of the Apex Court in John K Abraham v. Simon C. Abraham, reported in 2014 (2) SCC 236, wherein it has been held in para 9 thereof as follows:
"9. It has to be stated that in order to draw the presumption under Section 118 read along with Section 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant."
8. Accordingly, it is pointed out that it is highly essential even for the complainant to draw the presumption under Sec.118 and Sec. 139 of the N.I. Act that he should discharge the heavy burden of proof to establish that he had access to the required funds for having advanced the money to the accused during the time of the alleged borrowal. The petitioner's counsel has also placed reliance on yet another judgment of the Apex Court in K. Subramani v. K. Damodara Naidu, reported in (2015) 1 SCC 99, wherein the Apex Court has held that the failure on the part of Crl.R.P.827/17 - : 6 :-
the complainant to lead proper documentary or oral evidence to prove that he had source of income at the relevant time to lend the money covered by alleged borrowal, would be fatal to his case and in the facts of that case, the Apex Court has upheld the decision of the trial court to come to the considered conclusion that the complainant had failed to prove that there is legally recoverable debt payable, as the complainant could not prove his source of income to lend the money covered by the alleged borrowal, etc. In this regard it is also pointed out that the complainant has not let in any material or documentary evidence to show that he had actual access to funds to raise such a huge amount of Rs. 5 lakhs in January, 2008. It is also argued that both the courts below have erred egregiously in concluding that since the accused had raised a plea that he had borrowed a sum of Rs. 20,000/- from the complainant some time in the year 2000, would amount to his admitting the financial capacity of the complainant to borrow such a huge amount of Rs. 5 lakhs in January 2008. It is pointed out that merely because the accused has raised a plea that he had borrowed an amount of Rs. 20,000/- from the complainant in 2000, cannot be the legal basis for the courts below to conclude that the complainant had actual access to funds in January 2008 to raise such a huge amount of Rs.5 lakhs for the alleged borrowal. The whole approach made by both the courts below in this crucial aspect is in utter disregard of the crucial legal principles laid down by the Apex Court in the aforecited decisions in K.Subramani's case supra and John Crl.R.P.827/17 - : 7 :-
K Abraham's case supra. It is further pointed out that the complainant had only orally asserted during his deposition that his father in law had given him Rs. 3 lakhs after the sale of a property and further that another Rs. 2 lakhs was given to him by his wife's relative. Except by baldly raising such oral assertions, no material evidence has been let in by the complainant to discharge his heavy burden to prove that he had actual access to funds in January 2008, to raise such a huge amount of Rs.5 lakhs. It is also pointed out that P.W-1 (complainant) has admitted that those amounts were given to him about 2 to 3 years prior to the alleged transaction in January 2008. That apart, the complainant has not adduced any evidence through his father-in-law or through his wife's relative about the said money that he received 2 to 3 years prior to the abovesaid transaction. It is also pointed out that P.W-1 has specifically deposed before the trial court that he had refused to accept an assignment deed from the accused as security, as the door frame of his house is highly dilapidated and therefore he could not safely keep the sale deed in his house, etc. That thus the complainant himself has admitted that even the door frame of his house is in dilapidated condition and that his house was in a dilapidated condition, which prevented him to keep even the sale deeds safely in his house. On this basis, it is argued by the petitioner that if that be so, it is highly unbelievable that the complainant could safely keep such a huge amount of Rs.5 lakhs in his house for the alleged borrowal. In the light of all these aspects, the petitioner would strongly Crl.R.P.827/17 - : 8 :-
urge that the complainant has miserably failed to prove that he had the source of money so as to raise Rs.5 lakh for the borrowal in January, 2008 and that on this ground alone, the version projected by the complainant is liable to be rejected and the accused is entitled for the benefit of acquittal.
9. It is further argued that both the courts below have totally ignored and have wrongly appreciated the evidence tendered D.W-1 and D.W-2, who had accompanied the accused in the year 2000 when he had given the abovesaid cheque as a blank signed one as security towards the transaction for Rs. 20,000/- in the year 2000.
10. It is also pointed out that the courts below have taken the view that nothing has been brought out in evidence to show that the complainant is not in possession of the above amount of Rs. 5 lakhs at the relevant time when the accused had approached him requesting money from him.
11. It is argued that the said approach of the courts below more particularly the one rendered by the appellate court in para 10 of the impugned judgment is highly perverse and would be in flagrant disregard to the legal principles of the Apex Court in the aforectied decisions. It is urged that in view of the clear legal position settled by the Apex Court, the burden is heavy on the complainant to prove and convince the court about his actual source of money, on the basis of which he could raise the amount for the alleged borrowal and it is not for the Crl.R.P.827/17 - : 9 :-
accused to lead evidence to show that the complainant did not have the source of money.
12. The learned counsel appearing for the 1st respondent complainant would argue that the complainant has given oral evidence regarding his source of funds and that would be more than sufficient to discharge his burden. It is also argued that the necessary particulars regarding the transactions, which led to the liability as well as regarding the execution and issuance of the cheque have been stated in the complaint and in the evidence tendered by P.W-1 and that the contentions of the accused to the contrary are not tenable. It is further argued that both the courts below cannot be found fault with for having disregarded the evidence of D.W-1 and D.W-2, etc.
13. Having regard to the contentions on both sides, this Court is of the view that the aforementioned contentions raised by the complainant require serious re-consideration at the hands of the courts below. The impact of the aforesaid judgments of the Apex Court has not been considered in its proper perspective. However, instead of remitting the matter to the trial court, this Court is of the view that the ends of justice would be met by remitting the matter to the appellate court for consideration afresh, as otherwise the remit to the trial court would lead to unnecessary delays. In this view of the matter, the impugned judgment dated 1.2.2017 of the appellate Sessions Court in Crl.Appeal No. 365/2011 will stand set aside. The abovesaid criminal appeal will stand Crl.R.P.827/17 - : 10 :-
restored to the file of the appellate Sessions Court, who will consider the appeal afresh, after duly adverting to the rival contentions both sides.
14. The learned counsel appearing for the appellant accused and the learned counsel appearing for the respondent complainant will personally appear before the the appellate court at 11 a.m. on 26.8.2017, on which day, the said court will fix up a date for hearing of the appeal, which is convenient to both sides, and then proceed for hearing and disposal of the appeal on merits. Each of the contentions of both sides should be duly adverted to and considered by the appellate court. Both sides may give their argument notes in the matter of, which shall form part of the court records. Both sides should be given reasonable opportunity of being heard and the appellate court will endeavour to dispose of the appeal without much delay, at any rate, within a period of 3-4 months from the date of production of a certified copy of this order.
With these observations and directions, the aforecaptioned Criminal Revision Petition stands finally disposed of.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
///True Copy///
P.S. to Judge